Former Senate Judicial Proceedings chairman Robert A. Zirkin (D-Baltimore County) returned to his former committee this week to testify against a high-profile bill that’s a follow-up to a measure he once championed.
The woman who replaced Zirkin in the Senate last year, Sen. Shelly L. Hettleman (D-Baltimore County), has joined Del. CT Wilson (D-Charles) in his fight to eliminate the statute of limitations for child sex abuse survivors to launch civil suits. The bill was up in the Judicial Proceedings Committee, where Hettleman serves, on Tuesday.
But in lieu of a packed room full of survivors comforting each other and crying as they waited to testify, almost 200 pages of testimony were submitted to the panel, detailing heartbreaking stories of childhood shame, abuse, molestation and rape.
“In many ways, the COVID protocols under which we’re operating this session will not provide due consideration for a bill like Senate Bill 134,” Hettleman told her committee colleagues, “and if ever there was a time to read the written testimony that’s been submitted, this is it.”
“They were abused by people most of us trust, the people we consider upstanding members of our community,” she said. “People we trust and, in many cases, revere.”
This legislation is something that Wilson has fought for for years — at times with Zirkin’s help.
In 2017, Wilson successfully sponsored legislation to extend the ability of childhood sexual abuse survivors to pursue civil lawsuits against their offenders from seven years after their 18th birthday to 20 years.
Additionally, if a perpetrator was convicted in a criminal suit at any time, their victims were allotted a three-year lookback period to sue.
To achieve this, Wilson said that he, former Senate president Thomas V. Mike Miller Jr.’s Office and former House Judiciary Committee chair Joseph F. Vallario Jr. (D-Prince George’s) entered into negotiations with the Catholic church to amend the bill.
“Biggest mistake of my life,” Wilson told Maryland Matters this week, likening the experience to “negotiating with the devil.”
Wilson said that the church’s ultimate goal was to institute a statute of repose that ensured survivors couldn’t sue any entity that didn’t commit the alleged crime once they reached 38 years of age. In essence, the institution that employed the abuser wouldn’t be liable for any damages after the statute of repose was met.
The bill ultimately passed unanimously in both chambers of the General Assembly and went into effect on Oct. 1, 2017.
Wilson, a survivor of childhood sexual abuse, said he didn’t know that provision had ended up in the final legislation and would have never agreed to it if he had.
In a letter that year, Wilson credited Zirkin “for his incredible efforts to ensure that the legislation was passed.”
“You are lucky to have someone like Senator Zirkin fighting to cure the injustices facing Maryland children and ensuring the atrocities of the past do not continue in the future,” Wilson wrote in the letter published by Zirkin’s campaign committee. “Together, he and I worked both in public and in private to ensure that this legislation passed this session and I cannot express my gratitude enough — not just as the Sponsor of this bill but also as a victim.”
Zirkin resigned from the Senate in December 2019 after serving there for 13 years — five years as JPR chairman. A year after the “cooling off” period required for ex-lawmakers, he registered to lobby his former colleagues late last year.
On Tuesday, Wilson watched as the man he had been so grateful for testified in opposition to his third attempt to pass the latest version of the statute of limitations bill.
Zirkin appeared before the Senate Judicial Proceedings Committee representing the Maryland Catholic Conference, arguing that the bill has “problems on its policy, not in its focus on trying to get justice for victims.”
The 2021 iteration of Wilson and Hettleman’s legislation would eliminate the current statute of limitations established under the 2017 law, create a two-year lookback window to allow survivors who were unable to pursue civil suits to do so and repeal the statute of repose, “making it clear to the courts, the public and survivors that the Maryland General Assembly in 2017 did not intend to vest constitutionally protected property rights in child sexual predators, nor individuals and organizations that hid predators from discovery and prosecution,” Hettleman said.
Zirkin’s main problem with the bill? Its retroactivity and lack of parity for private and public institutions.
In Maryland, public institutions are protected by sovereign immunity, meaning that there are limits to what plaintiffs can receive as damages when those organizations are sued.
The concept of sovereign immunity has evolved over the years.
For example, if an individual were to sue a local public school under this bill’s two-year lookback window for an incident alleged to have happened before 1971, they wouldn’t be eligible to receive any damages because sovereign immunity protected those institutions from lawsuits completely during that time.
Should someone sue the same school for something that happened between 1971 and 2016, they would be eligible to receive up to $100,000 in damages. If they were to sue for alleged crimes that occurred between 2016 and the present, the current sovereign immunity cap rests at $400,000.
There is no such safety net for private institutions, Zirkin said, which could lead to multi-million dollar payouts and bankruptcies for incidents that happened decades ago.
“What’s good for the goose should always be good for the gander, whether it’s the government being sued or a private entity being sued,” he said.
“The legal grounds are pretty clear that this is an unconstitutional bill.”
‘It always seems to stumble in JPR’
Zirkin said Tuesday that Wilson and his fellow negotiators made a deal “cemented” by the statute of repose language in the 2017 bill that they would not attempt to incrementally change the law as it was agreed upon.
In a 2019 letter to House Economic Matters Committee Vice Chair Kathleen M. Dumais (D-Montgomery), Assistant Attorney General Kathryn M. Rowe said that, in her opinion, repealing the statute of repose and creating the lookback window as proposed would be unconstitutional because it would interfere with the “vested rights” afforded in the 2017 bill.
During Tuesday’s hearing, Sen. Michael J. Hough (R-Frederick) — who was a key ally of Zirkin’s when Zirkin was JPR chairman — asked Hettleman why the civil statute of limitations is being debated again when Wilson signed off on a compromise four years earlier that signaled the end of the discussion.
“Part of our job as legislators is to look at what we have done in the past and to see whether the laws that we’ve instituted at the time are addressing the issues that are out there,” Hettleman said. “And here we are … four years later and I would say that, no, what we did in 2017 wasn’t enough.”
Hough, still not understanding how Wilson misconstrued the meaning of the statute of repose in the 2017 bill, quoted Wilson’s testimony before the House Judiciary Committee:
“He went to the House Judiciary Committee, he sat there [with] the Catholic Conference and he said ‘I’ve given my word as part of an agreement that when this bill becomes law, I will not come back to the well,’” Hough read. “‘I won’t petition for anything. I won’t try to improve the bill. The agreement as it is, I take it. The agreement is take it as it is, and that is what I plan on doing.’ And he said, ‘I’m very grateful to the church.’”
Wilson kept taking hits as Tuesday’s hearing dragged on.
Sen. Robert G. Cassilly (R-Harford) said he also struggled to understand the argument that the statute of repose was misunderstood.
“I know some people think we’re stupid, but that really sounds like you’re not giving us any credit — that we would say, ‘Oh gosh, I knew I was depriving the guys 10 years out, but hey, I never thought I was depriving the people 40 years out,” he said.
Kathleen Hoke, a professor at the University of Maryland’s Carey School of Law, said that while no one was under the impression based on the 2017 bill that anyone was being granted retroactivity, the advocates who fought for the bill “believed they lived to fight another day.”
“So when CT Wilson said ‘we’re not coming back,’ then that was just a blatant lie,” Cassilly responded, “because he knew he was coming back and that’s why this matters.”
“Is that what you’re saying?” he asked Hoke.
She said no — and that she wasn’t speaking for Wilson.
“You’re just assuming that he’s a liar then,” Cassilly responded.
‘It just shows their character’
Wilson said he was disappointed that his colleagues were questioning his integrity, especially knowing how personally he takes the bill because of his own experience as a victim of abuse.
“Frankly, there’s no one for me to sue, so this is not about some personal gain,” he told Maryland Matters. “So for them to attack me personally, it just shows their character.”
Wilson also said that he isn’t confident the bill will make it out of the Senate and that Tuesday’s hearing “made it very difficult to get out of bed.”
“It always seems to stumble in JPR,” he said.
The bill as it was introduced in 2019 passed the House by a wide margin, but faltered when it hit Zirkin’s Judicial Proceedings Committee.
Current Committee Chair William C. Smith Jr. (D-Montgomery) was deployed in Afghanistan, leaving the JPR vote split 5-5, bottling up the bill.
Zirkin voted in opposition to giving the bill an unfavorable report.
“There are more things to do in this arena,” he conceded, but insisted the retroactivity clause was never on the table.
Zirkin told Maryland Matters that, in his opinion, parts of the 2017 bill — like the ability to initiate a civil suit three years after conviction — didn’t go far enough, and survivors should be able to sue their convicted offenders for the rest of their lives.
”My experience … is that people should be believed,” Zirkin said, adding that the veracity of people who come forward has nothing to do with his opposition of the bill.
He also said that when he started in the General Assembly in 1999, laws that protected abuse victims were few and far between: Megan’s Law, Jessica’s Law and legislation surrounding “sextortion” and revenge porn all happened in the last 21 years, and he credits the survivors for their existence.
In an interview Thursday, Zirkin made sure to emphasize his admiration of Wilson and the bravery he shows year after year.
“He’s a passionate and compassionate advocate on this issue,” he said. “He attacked bills without any regard for politics or party or anything like that, he just did what he thought was right.”
Despite Wilson’s doubts, he said the advocates who rally behind him are confident that the bill will pass. But he’s worried about what happens to them if he’s left to present the bill in the House because supporting witnesses are only able to testify from home.
He asserted that now is the worst time for people to “rip these wounds open” and suffer alone.
“It is torture,” Wilson said. “If Senator Hettleman is able to get this bill out of the Senate, I am fine with withdrawing my bill and having her name on it.”